Trainor v Police - [2022] NZHC 1022

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-52

[2022] NZHC 1022

BETWEEN
ANDREW STEVEN TRAINOR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 May 2022

Appearances:

T Nicholls for Appellant L Fiennes for Respondent

Judgment:

12 May 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 12 May 2022 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

TRAINOR v POLICE [2022] NZHC 1022 [12 May 2022]

[1] Mr Andrew Trainor was sentenced in the District Court at Christchurch to 18 months’ imprisonment on charges of driving while disqualified (third or subsequent), unlawful taking of a motor vehicle, theft of items from a car, assault of a police officer, and refusing a request for a blood specimen.1 Judge Brandts-Giesen granted leave to Mr Trainor to apply to have his sentence commuted to home detention if a suitable address to serve such a sentence became available.

[2] Some two months later an address became available, and Judge Duggan granted Mr Trainor’s application to have the sentence commuted.2 In doing so, the Judge stated “you will be able to serve the balance of your sentence, 11 months, on home detention”. Mr Trainor appeals the length of the home detention imposed on the basis the substituted period of 11 months did not adequately take into account the two months he had already served of the prison term imposed by Judge Brandts-Giesen, nor the five months he spent on custodial remand prior to being sentenced.

Analysis

[3] The Crown accepts the re-sentencing of Mr Trainor has gone awry. As observed by Ms Fiennes, it is likely the Judge’s reference to the balance of the sentence being 11 months’ was to the remaining period of imprisonment (not the period of home detention that Mr Trainor would have to serve) after deducting the seven months Mr Trainor had spent in custody. It may well have been the Judge’s expectation that this figure would be converted to home detention by halving the length of the prison term that would otherwise apply, but that was not expressly said. In any event, as Ms Fiennes also acknowledged, such an interpretation may still not result in the correct outcome.

[4] While the amount of home detention to be substituted for imprisonment is an evaluative exercise,3 ordinarily it involves halving the sentence of imprisonment that would otherwise be served. This reflects that the maximum length of a home detention sentence is limited to 12 months, whereas a short-term sentence of imprisonment which renders an offender eligible for home detention can be as much as two years.

1      New Zealand Police v Trainor [2021] NZDC 24483.
2      Department of Corrections v Trainor [2022] NZDC 3184.
3      R v Bisschop [2008] NZCA 229 at 17; and Ashby v Police [2015] NZHC 1900.

Additionally, a sentencing court is obliged to be cognisant of the time an offender has spent on remand in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trainor v Police

Details

AGLC: Trainor v Police [2022] NZHC 1022
Case: [2022] NZHC 1022
Decision Date: 12 May 2022

CaseChat Overview and Summary

In Trainor v Police, the appellant, Andrew Steven Trainor, was sentenced to 18 months' imprisonment on various charges, including driving while disqualified, unlawful taking of a motor vehicle, theft, assault on a police officer, and refusing a blood test. After two months in prison, an address became available for Mr Trainor to serve the remainder of his sentence on home detention. Judge Duggan commuted the sentence to 11 months' home detention, but Mr Trainor appealed on the basis that the sentence did not adequately consider the time he had already served in prison and the five months he spent on custodial remand prior to being sentenced.

The Court of Appeal accepted that the re-sentencing had gone awry and that the Judge likely intended the balance of the sentence to be 11 months of imprisonment, not home detention. The Court noted that ordinarily, when commuting a sentence of imprisonment to one of home detention, the length of the home detention sentence is half the length of the imprisonment sentence that would otherwise apply. However, the Court also observed that the sentencing court is obliged to be cognisant of the time an offender has spent on remand in custody prior to imposing a sentence of home detention.

The Court followed the approach in Longman v Police, which held that full equivalence should be the norm when adjusting a home detention sentence for the time actually spent in jail serving the same sentence. Applying this approach to the present case, the Court found that Mr Trainor should receive a credit of 14 months for the seven months he spent in custody, reducing the sentence to four months' imprisonment, which in turn equates to a sentence of two months home detention.

The Court noted that there are divergent approaches to calculating credit for time spent in custody when imposing sentences of home detention, but found the Crown's concession, that a substitute sentence of two months' home detention should be imposed, to be a proper one. The Court quashed the sentence of 11 months' home detention and substituted a sentence of two months' home detention, leaving the six months of post-release conditions and the original order disqualifying Mr Trainor from driving for 15 months undisturbed.

Orders